PART 7. TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
CHAPTER 313. STATE-SPONSORED INSPECTION AND DISPUTE RESOLUTION PROCESS (SIRP)
The Texas Residential Construction Commission ("commission") proposes amendments to Texas Administrative Code, Title 10, Part 7, §313.20, related to the appeal of the State-Sponsored Inspection and Dispute Resolution Process (SIRP).
The amendments are needed to correct an error in the language published in the December 26, 2008, issue of the Texas Register.
During an open meeting of the commission on December 10, 2008, the commission issued an order to adopt amendments to §313.20, which were previously published in the October 24, 2008, issue of the Texas Register (33 TexReg 8709). The adoption was with changes to the proposed text. The text of the commission's order of adoption was published in the December 26, 2008, issue of the Texas Register (33 TexReg 10430). Although the preamble published contained the rule language consistent with the commission's order, the text of the rule submitted for publication to the Secretary of State's office contained errors. Therefore, the rule that became effective on January 1, 2009, does not accurately reflect the commission's order. The amendments proposed herein reflect the correct language of the commission's order.
The rule amendments to 10 TAC §313.20 require that SIRP appeals be submitted on the commission's appeal form, identify the subject of the appeal, provide the ground or grounds for lodging the appeal, and state the performance standard or method or repair the homeowner, builder or remodeler asserts is correct when appealing on those grounds.
The proposed amendment to 10 TAC §313.20(b) tracks the language adopted by the commission in its order published in the December 26, 2008, issue of the Texas Register (33 TexReg 10430). "A builder or remodeler submitting an appeal to a third-party inspector's report that did not, before the inspection, offer to make repairs or have repairs made substantially equivalent to those required by the findings of the final report confirming the defect must submit a payment of $150 with the appeal form, as a deposit for the cost of the inspection."
"(1) A builder or remodeler's appeal received without payment or without evidence that an offer of repair as required under this subsection was made to the homeowner prior to the inspection will not be considered timely filed, unless the payment or evidence of offer is received before the fifteenth day after the date of the commission's letter notifying the parties of their right to appeal."
"(2) If the builder or remodeler's stated grounds for appeal are substantially affirmed in their entirety by the appeal panel, the $150 fee paid will be deducted from any amount due by the builder or remodeler for reimbursement of the inspection fee pursuant to §313.18 of this chapter, or if none of the allegedly defective items subject to inspection are finally determined by a final non-appealable report issued by the commission to be construction defects, the $150 fee will be refunded."
The proposed amendment to 10 TAC §313.20(d) tracks the language adopted by the commission is its order published in the December 26, 2008, issue of the Texas Register. In the preamble of the order the commission stated its intent to adopt 10 TAC §313.20(d), as follows: "A homeowner or builder or remodeler that asserts on appeal that the third-party inspector's recommendation for repair for an item found to be defective is unreasonable must state the method of repair that the homeowner, builder or remodeler asserts is reasonable. Failure to state the method of repair that the homeowner or builder or remodeler asserts is reasonable under this subsection will invalidate the appeal on that ground for the item appealed. If the basis of the builder or remodeler's appeal is that no defect exists and therefore no repair is required, the builder or remodeler must explain why the third-party inspector's finding of the existence of a defect is incorrect, why no defect exists, and thus no method of repair would be reasonable."
Ms. Susan K. Durso, General Counsel for the commission, has determined that for each year of the first five-year period that the proposed amendments are in effect there will be no increase in expenditures or revenue for state government and no fiscal impact for state or local government as a result of enforcing or administering the section.
Ms. Durso has also determined that for the first five years the amendments are in effect the public will benefit from having a quicker more efficient SIRP process. There is no anticipated economic cost to small businesses or persons who are required to comply with the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year period the amendments are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under the Administrative Procedure Act, §2001.022.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there will be no adverse economic effect on small businesses. Accordingly, no regulatory flexibility analysis is necessary.
Comments on the proposed amendments may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission, 311 E. 14th Street, Austin, Texas 78701 or by fax to (512) 463-9507. Comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "313.20" in the subject line. The deadline for submission of comments is fifteen days (15) days from the date of publication of the proposed rule in the Texas Register. Comments should be organized in a manner consistent with the organization of the rule under consideration. Comments submitted after the deadline for submittal, submitted to a different address, or submitted electronically without "313.20" in the subject line, may not be accepted.
The commission proposes the amendments under Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16, Property Code. The commission proposes the rule amendments to implement Subtitle D, Title 16 of the Property Code, specifically chapter 429 which describes the appeal of the third-party inspector's report described in chapter 428.
The statutory provisions affected by the proposed rule amendments and rule review are set forth in Title 16, Property Code §408.001 and §429.001.
No other statutes, articles, or codes are affected by this rule adoption.
§313.20.Appeal Process.
(a) (No change.)
(b) A builder or remodeler submitting an appeal to
a third-party inspector's report that did not, before the inspection,
offer to make repairs or have repairs made substantially equivalent
to those required by the findings of the final report confirming the
defect [make a good faith offer of repair to a homeowner prior
to the filing of the request for inspection,] must submit a
payment of $150 with the appeal form, as a deposit for the cost of
the inspection.
(1) A builder or remodeler's appeal received without
payment or without evidence that an offer of repair as required under
this subsection was made to the homeowner prior to the [
filing of the] inspection [request
] will not be considered
timely filed, unless the payment or evidence of offer is received
before the fifteenth day after the date of the commission's letter
notifying the parties of their right to appeal.
(2) If the builder or remodeler's stated grounds for appeal are substantially affirmed in their entirety by the appeal panel, the $150 fee paid will be deducted from any amount due by the builder or remodeler for reimbursement of the inspection fee pursuant to §313.18 of this chapter, or if none of the allegedly defective items subject to inspection are finally determined by a final non-appealable report issued by the commission to be construction defects, the $150 fee will be refunded.
(c) (No change.)
(d) A homeowner or builder or remodeler that asserts
on appeal that the third-party inspector's recommendation for repair
for an item found to be defective is unreasonable must state the method
of repair that the homeowner, builder or remodeler asserts
is reasonable. Failure to state the method of repair that the homeowner
or builder or remodeler asserts is reasonable under this subsection
will invalidate the appeal on that ground for the item appealed. If
the basis of the builder or remodeler's appeal is that no defect exists
and therefore no repair is required, the builder or remodeler must
explain[, in detail,] why the third-party inspector's
finding [assessment
] of the existence of a defect is incorrect,
why no defect exists, and thus, [why there is]
no [alternative] method of repair [that
] would be reasonable.
(e) - (l) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 23, 2009.
TRD-200900803
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: April 5, 2009
For further information, please call: (512) 463-4075